“Unjustified and disproportionate.” This was how Police Association president Greg O’Connor described the decision by Justice France (R v Antonievic  NZHC 2686) to toss out a series of charges on drug and other offences against members of the Red Devils Motorcycle Club, in the face of Police abuse of the judicial process.
Apparently prejudging the guilt of the formerly accused, O’Connor raised the spectre of a criminal group left free to carry on their illegal activities. Also, the Police attempt to protect the life of an undercover officer by bolstering his criminal alter ego had been frustrated. And it was all down to a “change of mind” on the part of a previously supportive District Court.
This was all a step up from what might be seen as the more usual liturgy from the Police Association, whose responses to Police sins of commission or omission normally reduce to a predictable pick ‘n mix of finger-pointing - under-resourcing, inadequate legislative provision, public misunderstanding usual among them.
Instead, it was all attack, a case of the Police and by extension the public, being wronged by the Court. Fault there was aplenty and none of it, it seems, could be laid at the feet of the Police. Nothing to see here. Look over there. Move along.
The extent to which the Police Association operates as the de facto voice of the Police hierarchy is an open question. There may be no significance at all in the fact that O’Connor has spoken out where Police management has - wisely in this case - opted for restraint. But one thing is sure, for good or ill, he has become the public’s window on the Police and its culture.
Sadly, the view he presents in this case is not an edifying one. It suggests an ethos in which the ends justify the means, only ‘crims’ break the law, breaches of the rule of law and separation of powers are incidental or even irrelevant considerations. It is also one in which appeals to public fear and prejudice are a legitimate response to substantive error.
At the very least the public has to be left wondering how the preparation of a false warrant, the swearing of false charges and giving of evidence concerning conformance with an ‘undercover’ protocol written after the fact, can be justified. And perhaps even more troubling is how such a course of action could have been pursued without the Police seeking any legal advice over a plan that would necessarily involve the deception of the Court and at the same time making it a tool of an investigative process.
In the circumstances, Justice France's decision was certainly justified and proportionate. He accepted without hesitation the good faith of the officers involved, but equally could not overlook the “serious misuse of the Court, and a troubling misunderstanding of its functions” involved.
The stay of proceedings was regarded as the price to be paid for maintaining the integrity of the system. But it is not a price demanded by the preciousness of the Court or esoteric principle. Rather, it arises because of, not despite, the Police, and a narrow view of an investigation apparently without reference to the wider context within which Police powers must be exercised